Evidence Commons^™

“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender

Touro Law Review

Recent revelations have shown that the protection of the Fourth Amendment in the digital age is inadequate. Despite well-known exclusionary rules regarding evidence obtained by illegal search and seizure, current trends in the digital age and the law of evidence resulted in courts that tend to include such evidence, and by doing so, create significant risk of both substantive and procedural errors and hence increase the potential for wrongful convictions. To address the matter and try to empower and modernize the protection given by the Fourth Amendment, this article suggests performing a revolution in the law of evidence in the …

Variable Standards: How Many Uninjured Class Members Are Acceptable?, Tom Flesher

Touro Law Review

Purchasers of canned tuna filed a class action against tuna producers after a price-fixing scheme raised prices above competitive levels. To be certified, a class must include only members who have suffered an injury, in this case by paying a higher price than they would have in the absence of price-fixing, but it was difficult to identify which plaintiffs were uninjured and should be excluded. Dueling statistical models failed to resolve this uncertainty, with one model suggesting up to one in every three class members was not injured at all. The Ninth Circuit nonetheless allowed this class to be certified, …

The False Evidence Ploy: A Coercive, Not Just Deceptive, Police Tactic, Alexa D. Sondey

Touro Law Review

Why would people confess to a crime they did not commit? It may seem hard to imagine that an innocent person would confess but as this Note will show, false confessions are a real and serious issue. One cause of false confessions is the False Evidence Ploy - a police interrogation tactic where police falsely tell a suspect they have some sort of incriminating evidence against them. This Note argues that the Ploy is psychological coercion, as it may cause innocent suspects to believe they actually committed the crime and then confess. N.Y. Bill S324A presented a solution, banning the …

Prosecutorial Independence Regained? Mixing The Continental And Anglo-American Styles In South Korea, Neil Chisholm

Cardozo International & Comparative Law Review

The article examines the challenges of achieving prosecutorial independence in South Korea, highlighting the tension between Continental European and Anglo-American models. It explores the reforms aimed at addressing these challenges, including the creation of the Corruption Investigation Office for High-Ranking Officials (CIO) and the decentralization of investigative powers. While these reforms reflect an effort to balance bureaucratic and democratic accountability, concerns persist about politicization, hierarchical control, and the effectiveness of new institutions. The article argues that the success of these reforms depends on structural changes and the ability of new agencies to operate independently.

From Proposal To Practice: Unpacking The Failed New Jersey Joint Custody Bills And Their Implications For Domestic Violence Victims, Jenna Rosenstein

Cardozo Journal of Equal Rights & Social Justice

The note critically examines the failed 2018 New Jersey bills proposing a presumption of joint legal and physical custody in child custody matters, arguing that such measures may inadvertently harm victims of domestic violence by shifting the burden of proof onto them and failing to account for the complexities of abuse. It advocates for a more nuanced legal framework that balances shared parenting with the safety and well-being of domestic violence victims and their children.

"Be Thankful I Don't Take It All ('Cause I'M The Taxman)": Music Transactions, Catalog Sales, And Tax Treatment, Hannah M. Bartfield

Cardozo Arts & Entertainment Law Journal

This Note examines music catalog transactions from a tax perspective to determine the key considerations, benefits, and consequences of such a transaction, and then addresses why these characteristics are inconsistent with the purpose of copyright law. First, this Note addresses the copyright concepts that govern the music industry in Part I.B. In Part II, royalties are discussed as one method that musicians can rely on to earn revenue from their music, including a summary of how those earnings are taxed. In Part III, these findings will be weighed against similar considerations for the sale of an artist's music catalog, including …

Old Habits Die Hard: Precedent, Psychology, And The Admissibility Of Forensic Evidence, Sara Gordon

All Faculty Publications

Forensic evidence, long considered a cornerstone of criminal justice, has faced increasing scrutiny as recent studies and reports expose significant flaws in its scientific foundation. Techniques such as latent fingerprint analysis, microscopic hair comparison, and ballistics matching, which had been widely accepted for decades, are now being challenged for their lack of empirical validation. Reports by the National Research Council and the President’s Council of Advisors on Science and Technology have highlighted the deficiencies in these forensic methods, calling into question their reliability and the weight they are given in courtrooms. Yet despite the growing acknowledgement of widespread issues affecting …

Accidental Brady Violations, Adam M. Gershowitz

Faculty Publications

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.

But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is …

Rules And Laws For Civil Actions 2026, Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Let's Break Some Rules: Immodest Proposals For Evidence Reform, Len Niehoff

Articles

In 1975, when the American Bar Association launched LITIGATION, its editors dedicated the entirety of one of the journal's first issues to evidence. Authors included distinguished practitioners, respected judges, and academic giants like Margaret A. Berger, Irving Younger, and Jim McElhaney. Subjects varied, but the articles shared a common sensibility: The recently adopted Federal Rules of Evidence were a good thing.

Consensus And Conflict Over Context: Select Criminal Law And Procedure Cases From The Supreme Court's 2024-25 Term, Eve Brensike Primus, Elena Schultz

Articles

In its 2024-2025 Term, the Supreme Court emphasized the utility—and necessity—of context-based, fact-sensitive analyses throughout its criminal law and procedure cases. Though the Justices sparred over how to derive meaning from factual, structural, legal, and historical contexts, they tended to agree that courts should not be artificially restricted from considering the breadth of the record before them.

The Difference A Year Makes: The Admissibility Of Expert Opinion Testimony Under The 2023 Amendment To Federal Rule Of Evidence 702, Daniel J. Capra, Liesa L. Richter

Other Faculty Publications

No abstract provided.

A New Deepfake Detection Method With No-Reference Image Quality Assessment To Resist Image Degradation, Jiajun Jiang, Wen-Chao Yang, Chung-Hao Chen, Timothy Young

Electrical & Computer Engineering Faculty Publications

Deepfake technology, which utilizes advanced AI models such as Generative Adversarial Networks (GANs), has led to the proliferation of highly convincing manipulated media, posing significant challenges for detection. Existing detection methods often struggle with the low-quality or compressed press, which is prevalent on social media platforms. This paper proposes a novel Deepfake detection framework that leverages No-Reference Image Quality Assessment (NRIQA) techniques, specifically, BRISQUE, NIQE, and PIQUE, to extract quality-related features from facial images. These features are then classified using a Support Vector Machine (SVM) with various kernel functions. We evaluate our method under both intra-dataset and cross-dataset settings. For …

New Insights On Expert Opinion About Eyewitness Memory Research, Travis M. Seale-Carlisle, Adele Quigley-Mcbride, Jennifer E. F. Teitcher, William E. Crozier, Chad S. Dodson, Brandon L. Garrett

Faculty Scholarship

Experimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

You Get The Jury You Get And You Don’T Throw A Fit, Taurus Myhand

Scholarly Works

The proliferation of deepfake videos has resulted in rapid improvements in the technology used to create them. Although the use of fake videos and images is not new, advances in artificial intelligence have made deepfakes easier to make and harder to detect. Basic human perception is no longer sufficient to detect deepfakes. Yet, under the current construction of the Federal Rules of Evidence, trials judges are expected to do just that. Trial judges face a daunting challenge when applying the current evidence authentication standards to video evidence in this new reality of widely available deepfake videos. This article examines the …

A Conviction In Jeopardy: The Mysterious Case Against Scott Peterson, Jolie Bodner Zangari

Scholarly Works

No abstract provided.

The Jury Does Not Always Need Help From Lay Opinion Witnesses, Taurus Myhand

Scholarly Works

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some …

The Prosecutor Vacancy Crisis, Adam M. Gershowitz

BYU Law Review

There is a prosecutor vacancy crisis in the United States. Prosecutors are quitting in droves and there are few applicants to replace them. In Houston and Los Angeles, more than 15% of prosecutor positions are open. In Detroit, the vacancy rate exceeds 20%. In Alameda, 25% of prosecutor positions are empty. And in Miami, a staggering 33% of prosecutor positions are unfilled. The situation is equally dire in many large and small counties across the nation.

Drawing on data and interviews from more than two-dozen district attorney’s offices, this Article documents how low salaries, massive caseloads, lack of remote work …

Federal Rule Of Evidence 702: A History And Guide To The 2023 Amendments Governing Expert Evidence, Mark A. Behrens, Andrew J. Trask

Texas A&M Law Review

Federal Rule of Evidence 702 was amended effective December 1, 2023. The Rule was amended to clarify and emphasize that expert testimony may not be admitted unless the proponent demonstrates to the court by a preponderance of the evidence that the proffered testimony meets all of the Rule’s admissibility requirements. The amendment was necessitated by decisions by many federal courts incorrectly applying the reliability requirements set forth in Rule 702(b) and (d) and declaring that expert testimony is presumed to be admissible. Rule 702 was also amended to prevent “overstatement” by experts. Rule 702(d) now emphasizes that an expert’s opinion …

Murder On The Hearsay Trail, Jeffrey Bellin

Texas A&M Law Review

Judges, lawyers, and law students struggle to apply American evidence law’s most distinctive feature—the hearsay prohibition. The problem is that hearsay is difficult to master and somewhat dull. At the same time, hearsay evidence is ubiquitous and important. Every litigator has a story about a judge’s eccentric hearsay rulings; mine is the trial judge who waved his hand dismissively at hearsay objections, letting witnesses answer on the grounds that “I want to hear it.” And the case law is littered with appellate opinions scolding trial judges for erroneous hearsay rulings while introducing errors of their own.

That is just the …

A Constitutional Right To Exclude Evidence, Colin Miller

Texas A&M Law Review

The Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants …

The Obsolescence Of Voluntary Confessions In Maine, John C. Sheldon

Maine Law Review

The would-be assassin lurks in the crowd that gathers outside the campaign headquarters building. In anticipation of the candidate's appearance, the television technicians hoist their videotape cameras and illuminate the scene with floodlights, as the gunman nervously fingers the automatic concealed in the pocket of his field jacket. Moments later, the candidate emerges from the doorway; the assassin rushes into the floodlit view of the cameras, takes aim at the startled politician, and hollers: "I've been planning this for years, and now I'm going to give you what's coming to you." His shots ring out as Secret Service agents converge …

The Parent-Child Privilege And The Parent-Child Crime: Observations On State V. Delong And In Re Agosto, Ellen Kandoian

Maine Law Review

Should a child be compelled to testify against his parent under threat of criminal punishment? Ignoring for a moment the applicable legal doctrines, there are several reasons why one might answer no. First, if we value the idea of family loyalty, and believe that loyalty of a child to his parent is particularly important for traditional, moral, and practical reasons, then measures taken by a state to undermine such loyalty must be viewed critically. Second, children tend to accumulate tremendous amounts of information about their parents' activities and are party or witness to many communications made by their parents with …

Triangulating The Likelihood Of Confusion: Linguistics And Consumer Surveys, Eric Derosia, Jesse Egbert, Thomas Lee

BYU Law Review

This Article highlights contributions that linguistic analysis can offer in the assessment of the likelihood of confusion in trademark infringement cases. Parties in such cases often engage an expert witness to conduct a survey that measures the likelihood of consumer confusion. We show how an expert linguist can provide important, nonintuitive dynamics of corroboration. We introduce “expert triangulation” as a conceptual framework to analyze whether, and to what extent, experts in linguistics and consumer surveys can corroborate one another. That is, having two different sources of empirical evidence which lead to similar conclusions should be a benefit to the courts, …